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Cynthia Cook, Individually and As Mother and Next Friend of Lr, A Disabled Person, et al v. Children's National Medical Center

September 13, 2011

CYNTHIA COOK, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF LR, A DISABLED PERSON, ET AL., PLAINTIFFS,
v.
CHILDREN'S NATIONAL MEDICAL CENTER, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

In Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998), the District of Columbia Court of Appeals recognized a new, independent tort: negligent or reckless spoliation of evidence. See Holmes v. Amerex Rent-A-Car, 710 A.2d at 847-48; see also Mazloum v. District of Columbia Metro. Police Dep't, 522 F. Supp. 2d 24, 55 (D.D.C. 2007). That tort permits a plaintiff to recover against a defendant who "negligently or recklessly destroyed or allowed to be destroyed evidence that would have assisted the plaintiff in pursuing a claim against a third party." Holmes v. Amerex Rent-A-Car, 710 A.2d at 848.

In this case, plaintiffs Cynthia Cook and her child, LR, have filed an amended complaint against defendant Children's National Medical Center ("CNMC") in which they make a single claim: that CNMC is liable for negligent or reckless spoliation of LR's postnatal medical records from April 1991. This matter now is before the Court on CNMC's motion to dismiss the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, under Rule 8(a)(2). Upon consideration of the parties' papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will grant CNMC's motion to dismiss.*fn1

I. BACKGROUND

According to the amended complaint, Cynthia Cook prematurely gave birth to her child, LR, on April 23, 1991 at the Washington Hospital Center. See Am. Compl. ¶¶ 7-8.*fn2 As plaintiffs describe it, at 8:30 p.m. on April 22, 1991, Ms. Cook began experiencing "premature rupture of membranes," that is, her amniotic sac began to break. Id. ¶ 7. LR's expected date of delivery, however, was not for another 45 days. See id. ¶ 7. So at 10:00 p.m. on April 22, Ms. Cook went to the Washington Hospital Center, and "[t]he onset of labor . . . was documented as being 1:30 a.m. on April 23[.]" Id. ¶ 8. Ms. Cook was fully dilated by 6:00 a.m. on April 23, and she delivered LR 15 minutes later. See id.

Shortly after birth LR began experiencing "respiratory distress." Am. Compl. ¶ 10. And within five hours of birth, LR developed a "severely acidotic" blood pH of 7.18. Id. Although LR then was intubated, she continued to experience respiratory distress. See id.

¶¶ 11-12. On the third day of LR's life, while LR was still at the Washington Hospital Center, a cardiologist recommended that if conventional ventilation procedures like intubation continued to fail, LR should be placed on extracorporeal membrane oxygenation ("ECMO"), id. ¶ 11 - a procedure that "involves circulating and oxygenating blood outside [a] patient's body." Rice v. United States, No. 96-5175, 1997 WL 353009, at *1 n.2 (10th Cir. June 26, 1997).

LR's respiratory problems persisted, and LR then was transferred from the Washington Hospital Center next door to CNMC so that LR could be placed on ECMO. See Am. Compl. ¶ 12. But "[a]fter a substantial period of time at CNMC, LR was returned to the Washington Hospital Center without [the] ECMO [procedure] having been performed." Id. ¶ 13. Plaintiffs allege that, due to "severe hypoxia," LR suffered brain damage, id. ¶ 19, causing mental retardation that will require care for the rest of her life. Id. ¶ 5.

At some later point in time, plaintiffs requested that CNMC provide them with various records that CNMC itself created or otherwise obtained from the Washington Hospital Center. See Am. Compl. ¶¶ 14-16, 19. Specifically, plaintiffs requested that CNMC provide the following: (1) "medical records concerning the care that [CNMC] provided to LR in the postnatal period," id. ¶ 14; (2) "bills and/or X rays concerning care rendered to LR in the postnatal period," id. ¶ 15; and (3) "a copy of the entire medical record of LR at the Washington Hospital Center [that most likely] would have been provided to CNMC," as well as Washington Hospital Center's "transfer summary" stating, among other things, "the reason for the transfer" to CNMC and "the condition of LR at the time of transfer." Id. ¶ 19. Plaintiffs allege, however, that CNMC has failed to provide these requested medical records; plaintiffs further allege that CNMC negligently or recklessly lost or destroyed these records. See id. ¶¶ 14-17, 19.

On June 7, 2010, plaintiffs filed suit in this Court against CNMC. Their original complaint made two claims: (1) negligent or reckless spoliation of evidence, see Compl. ¶¶ 7-22; and (2) medical malpractice. See id. ¶¶ 23-28. Plaintiffs requested $40 million in compensatory damages. Id. at 11. Prior to any action taken by CNMC, plaintiffs filed an amended complaint against CNMC on June 21, 2010. This amended complaint makes a claim only for negligent or reckless spoliation of evidence, see Am. Compl. ¶¶ 7-22, not for medical malpractice, and it requests $30 million in compensatory damages. See id. at 9.

In response, CNMC filed a motion to dismiss the plaintiffs' amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, under Rule 8(a)(2). Plaintiffs filed an opposition, and CNMC replied. The Court heard oral argument on December 1, 2010. Thus, this matter now is ripe for decision.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests . . . .'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted).

On a motion to dismiss under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. at 94; see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555; Phillips v. Fulwood, 616 F.3d at 581. The complaint "is construed liberally in the [plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts ...


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